National Treasury Employees Union, Chapter 208 and U.S. Nuclear Regulatory Commission

[ v55 p666 ]

55 FLRA No. 116

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 208
(Union)

and

U.S. NUCLEAR REGULATORY COMMISSION
(Agency)

0-AR-2939
(54 FLRA 1416 (1998))

_____

ORDER DENYING MOTION FOR
RECONSIDERATION

July 31, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This case is before the Authority on the Union's motion for reconsideration of the Authority's Decision in 54 FLRA 1416 (1998). The Agency filed an opposition to the motion.

      Section 2429.17 of the Authority's Regulations permits a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. For the following reasons, we conclude that the Union has failed to establish that extraordinary circumstances exist, and we deny the Union's motion.

II.     Decision in 54 FLRA 1416

      In U.S. Nuclear Regulatory Commission and National Treasury Employees Union Chapter 208, 54 FLRA 1416 (1998) (NRC), the Authority denied Union exceptions to the arbitration award in this case, in which the Arbitrator found that a grievance was nonarbitrable because it concerned a classification matter under section 7121(c)(5) of the Federal Service Labor-Management Relations Statute (the Statute). [n2]  As relevant here, the Arbitrator made a factual finding that "the specific content" of the grievant's job -- motor operated valve (MOV) inspections --"did not pre-exist his assignment" and, based thereon, concluded that those duties were not encompassed in already-classified position descriptions. Award at 36. The Authority deferred to the Arbitrator's finding of fact and concluded, consistent with that finding, that the determination that the grievance involved a classification matter was not contrary to law.

III.     Motion for Reconsideration

A.     The Union

      The Union asserts that the Authority "made an erroneous interpretation of the factual record . . . ." Motion for Reconsideration at 6. According to the Union, the Arbitrator's determination that the grievant's MOV inspection duties did not pre-exist his assignment is incorrect and contradicted by the Arbitrator's additional finding that a program had been initiated to conduct MOV inspections by the time the grievant was assigned. The Union claims that, if the Arbitrator's factual determination had been correct, then the Authority would have found that the grievance did not concern a classification matter. The Union claims, in this regard, that a "generic position description," such as that covering the grievant's position, "does not encompass every specific duty performed." Id. at 7.

      The Union also asserts that the Authority erred in its conclusion of law by applying a "significantly modified" classification analysis. Id. at 4. The Union argues that the Authority's statement that "the Authority has long held that grievances concerning temporary promotions based on previously classified duties do not raise Section 7125(c)(5) issues," is incorrect. Id. at 8 (citing NRC, 54 FLRA at 1421). According to the Union, the Authority has long held that classification matters involve classification of positions, not individual duties.

B.     The Agency

      The Agency contends that the Authority correctly stated and applied the law in NRC. The Agency also asserts that the classification of "positions" necessarily "involves the analysis of the duties assigned to employees." Agency Response at 6.

IV.     Analysis and Conclusions

      Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration after the Authority has issued a final decision or order bears the heavy bur- [ v55 p667 ] den of establishing that extraordinary circumstances exist to justify this unusual action. See U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 86-87 (1995) (Scott Air Force Base). In Scott Air Force Base, the Authority identified a limited number of situations in which extraordinary circumstances have been found to exist. These grounds include, as relevant here, where a moving party can establish that the Authority erred in its conclusion of law or fact finding, or where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in its decision.

      The Union's first argument is that the Authority erred by relying on the Arbitrator's finding that the grievant's MOV duties did not pre-exist his arrival. Essentially, the Union is asserting that the award was based on a nonfact. Although an award that is based on a nonfact is deficient, the Union did not argue in its exceptions that the award was deficient on this ground. The Authority defers to arbitral findings of fact--provided they are not nonfacts. [n3]  See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993).

      The Union further argues that the Authority applied a "significantly modified" classification analysis, and that it did so sua sponte. In relevant part, the Authority's decision reads: "[T]he Authority has long-held that grievances concerning temporary promotions based on the performance of previously-classified duties do not raise classification issues within the meaning of section 7121(c)(5)." 54 FLRA at 1421. Although the facts found by the Arbitrator and relied upon by the Authority in NRC are unlike those routinely presented to the Authority, the legal standard stated by the Authority is not new. See, e.g., U.S. Department of Health and Human Services, National Institute for Occupational Safety and Health, Cincinnati Operations, Cincinnati, Ohio and American Federation of Government Employees, Local 3840, 52 FLRA 217, 221 (1996) (stating that "where an arbitrator determines that a grievant is entitled to a [promotion] based on previously-classified duties, the award has been held not to concern a classification matter"); U.S. Department of Health and Human Services Region X, Seattle, Washington and National Treasury Employees Union, 52 FLRA 710, 715 (1996) (stating that "where an arbitrator determines that a grievant is entitled to a temporary or other noncompetitive promotion based on previously-classified duties, the award has been held not to concern a classification matter") (citation omitted); U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 42 FLRA 795, 801 (1991) (stating that "[t]he Authority has uniformly and repeatedly held that grievances over whether a grievant was entitled [to be] compensated at a higher rate of pay by reason of having temporarily performed the duties of a higher-graded position do not concern the classification of any position within the meaning of section 7121(c)(5)"). Moreover, although applicable regulations define "classification" as "the analysis and identification of a position[,]" 5 C.F.R. § 511.101(c), regulations define "position" as "the work, consisting of the duties and responsibilities, assigned . . . for performance by an employee." 5 C.F.R. § 511.101(e).

      The Authority did not apply a new legal standard in NRC. Thus, the Union's motion does not establish the extraordinary circumstances that as set forth in Scott Air Force Base are necessary to warrant reconsideration of the decision published at 54 FLRA 1416. See, e.g., U.S. Department of Health and Human Services, Social Security Administration, New York Region and American Federation of Government Employees, Local 3369, 52 FLRA 989 (1997); Sport Air Traffic Controllers Organization (SATCO) and Air Force Flight Test Center (AFFTC), Edwards Air Force Base, California, 52 FLRA 339 (1996).

V.     Order

      The Union's motion for reconsideration is denied.


Concurring Opinion of Member Wasserman

      I join in the denial of this motion because I do not think that the "extraordinary circumstances" standard described in Scott Air Force Base has been met. I do not view the majority decision in NRC as creating an erroneous change in a legal standard; it simply reflects an application of precedent different from my own, or that espoused by the Union. Reconsideration is available when the Authority has misapplied the law, but it was not intended to permit a party to relitigate the merits of its case. For the reasons stated in my dissent in NRC, I maintain the view that the case was wrongly decided, but do not think that the Union has stated grounds for reconsideration.






Footnote # 1 for 55 FLRA No. 116

   Member Wasserman's concurring opinion appears at the end of this decision.


Footnote # 2 for 55 FLRA No. 116

   In addition to the aspects of the Authority's decision to which the motion for reconsideration relates, the Authority in NRC also: (1) denied the Agency's exceptions to the Arbitrator's award relating to a second employee's grievance, determining that the Agency failed to temporarily promote the grievant; and (2) granted the Union's motion to strike sections of the Agency's opposition because it raised new arguments and exceptions to the Arbitrator's award.


Footnote # 3 for 55 FLRA No. 116

   We note that the Authority previously addressed and rejected the Union's argument regarding generic position descriptions. Specifically, the Authority stated that "[t]he fact that [the grievant's] duties did not exist" at the time the relevant positions were classified "persuade[d] [the Authority] that it is not relevant that those position descriptions are 'generic.'" NRC, 54 FLRA at 1422 n.7 (quoting Award). The Authority stated further that "[w]hether or not they are generic, the fac